Black Lives Matter: the legalities and politics of Australia’s racial vilification and defamation laws

This blog covers the three of the four main points of The influence of defamation law on the interpretation of Australia’s racial vilification laws (2020, 26 TLJ 34, LexisNexis), by Bill Swannie of Victoria University.

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How do you balance public interest in fair comment over ridicule and satire and how does this help us in interpreting our racial vilification laws?  What is actionable as defamation and what are the relevant laws in a society that considers free speech a sacred principle?

As Black Lives Matter protests sweep across the world, sparked by yet another life brutally taken in the US, attention is naturally turning to the issue of race in our own backyard, and what we’re doing to prevent injustice.

Australians have rallied in solidarity with those in the United States protesting racism and police brutality, and the momentum created by the horrific death of George Floyd is prompting us to examine some of the many issues pertaining to race and discrimination.

From indigenous deaths in custody to confronting racism in the police force, the language we use around discussing these issues is once again under the microscope.

In a recent article The influence of defamation law on the interpretation of Australia’s racial vilification laws (2020, 26 TLJ 34, LexisNexis), Bill Swannie of Victoria University focuses on Australia’s racial vilification laws and the relationship with defamation.

In the course of the article, Swannie articulates the factors relevant to determining whether particular conduct is done ‘reasonably and in good faith’ and is therefore, exempt from liability.

  • - First, it highlights the significant overlap between the types of conduct sanctioned by s 18C of the Racial Discrimination Act 1975 (Cth), and the definition of defamatory matter.
  • - Second, the journal article argues that both racial vilification laws and defamation law seek to protect individual dignity and autonomy.
  • - Third, this article argues that not all conduct covered by Australia’s racial vilification laws can be characterised as valuable ‘political’ discussion. Rather, these laws impose liability for conduct that causes serious personal and communal harms.
  • - Finally, the journal article examines the exemptions to liability in Australia’s racial vilification laws.

Within the article, he also analyses several notable cases, including

  1. Lange v Australian Broadcasting Corporation (1997) wherein the High Court held that Australian defamation law cannot be allowed to limit ‘political speech’, because political speech is an ‘inherent’ feature of the Constitution.
  2. Radio 2UE Sydney Pty Ltd v Chesterton (2009) where the High Court clarified the general test for defamation in Australia.
  3. Eatock vs Bolt (2010)which determined that several articles published by columnist Andrew Bolt, such as “It’s so hip to be black”, were unlawful.
  4. Bropho v Human Rights & Equal Opportunity Commission (2004) that involved a cartoon that was published in The West Australian newspaper.

Liability for public communication that is insulting or abusive, even if it’s satirical: Part IIA of the Racial Discrimination Act 1975

In Australia, the Racial Discrimination Act 1975 aims to protect people from racial discrimination in many areas of public life, including employment, education, services, housing, and accessing public places.

The Act was later amended to go even further – making racial vilification unlawful. In 1995, Part IIA was inserted into the Racial Discrimination Act 1975. The provisions in this part prohibit offensive behaviour based on racial hatred, with section 18C making it “unlawful for a person to do an act, otherwise than in private, if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

Racial vilification clearly overlaps with tort of defamation however, defamation was only obliquely referred to by Parliament at the time the racial vilification laws were introduced.

However, commentators have long noted the striking similarities between the enacted laws and the common law action for defamation.

Determining liability: Section 18C and defamation law

Scholars such as Michael Chesterman have highlighted the similarities and differences between defamation law and Part IIA, and the implications for interpretation of Part IIA. Significantly, Chesterman notes that the ‘substantive criteria for liability’ under section 18C resembles that of defamation law.

Like racial vilification laws, defamation law is concerned with a person’s public reputation, rather than merely hurt feelings or private embarrassment. The common law tort looks at whether particular materials are likely to lower the plaintiff’s standing in the community and can only be established if the relevant matter is ‘published’ to at least one person other than the plaintiff.

When it comes to determining liability, Chesterman notes that the standard for liability under section 18C (conduct that is ‘reasonably likely to offend, insult, humiliate or intimidate’) does not bear an obvious similarity to defamation law. However, insulting or humiliating communications are arguably actionable as defamation in certain circumstances. While liability under Part IIA depends on the likely response of members of the target group and defamation law focuses on the likely response of those who witness the relevant conduct, this difference has little practical effect.

Other similarities to defamation law include:

  • an objective approach to interpreting conduct for the purposes of determining liability under section 18C
  • context being taken into account in interpreting conduct under Part IIA (section 18C requires that ‘all the circumstances’ are taken into account in determining liability under that section)
  • publication to even a small audience possibly attracting liability
  • defamation law already recognising the potential harmfulness of satire and ridicule (though much depends on the circumstances).

While there are significant similarities between the types of conduct that may attract liability, Part IIA may have a wider operation than defamation law.

Recent case law indicates that insulting or abusive communications may not be defamatory under Australian law with scholars noting that racially based insults may incur liability under Part IIA, even though they may not be defamatory.

In addition, while defamation law is specifically concerned with protecting individual reputation, Part IIA may enable claims by members of a group (or by a representative of a group on behalf of that group) in respect of racial slurs against that group.

Protecting individual dignity and autonomy in a society that values free speech

It’s arguable that defamation law and Part IIA are similar not merely in terms of their scope and definition, but at a deeper, conceptual level. Both defamation law and Part IIA seek to protect individual dignity, including certain aspects of a person’s identity and social status.

Robert Post examines not only the current features of defamation law, but how these features have emerged and developed over time, as society itself changes. He has identified three main senses of reputation that are relevant to defamation law: reputation as property, as honour and as dignity.

Post argues that defamation law, as it emerged in pre-industrial society, was concerned with protecting the special status of particular individuals, such as lords, nobles and aristocrats. ‘Reputation’ in such circumstances meant protecting a person’s honour, or their individual claim to a particular institutional role.

Reputation as ‘property’ emerged later, when capitalism became dominant, and reputation became more associated with notions of goodwill, or commercial credit, in a marketplace

Post argues that neither honour nor property adequately explains the role of defamation law in current society. In modern times, Post argues, defamation law seeks to protect a person’s dignity, or their inherent worth as a human being.

Extending on this idea, Jeremy Waldron argues that racial vilification laws seek to protect a person’s dignity and can be understood as ‘group defamation’ laws. There is a contrary argument, made Sadurski, that these laws are inconsistent with liberal conceptions of human dignity and autonomy. However, Sadurski’s argument is inherently flawed and the argument that Part IIA promotes, rather than restricts, individual dignity and autonomy is strengthened by deeper analysis of how these provisions operate.

Part IIA, political discussion, free speech and fair comment

The High Court case of Lange (1997) 189 CLR 520 marked a fundamental shift in the law of defamation in Australia.  The Court held that held that Australian defamation law cannot be allowed to limit political speech. Stating that, without the defence, defamation law could stifle legitimate political and social debate, the Court developed a new defence to defamation that specifically protected discussion of ‘politics and government’.

In this case, the High Court declared that every member of the public has an interest in communicating and receiving information on politics and government. Therefore, communication on politics and government is immune from proceedings for defamation, even when the communication is made to a large audience, for example by a media broadcaster.

This raises the question of whether Part IIA, which specifically concerns public communications concerning race, restricts legitimate political communication. While it’s arguable that all public communications relating to racial groups are necessarily political, this argument relies on an extremely broad conception of political communication – and the Court in Lange significantly narrowed the scope of political communication.

Consequently, not all instances of conduct infringing Part IIA can be regarded as political communication. Further, the immunity concerning political communications in defamation law has certain requirements, including reasonableness and accuracy – concepts which are also central to exemptions in Part IIA which are contained in section 18D.

Conclusion

It certainly can be said that not all conduct covered by Australia’s racial vilification laws can be characterised as valuable ‘political’ discussion. Rather, these laws impose liability for conduct that causes serious personal and communal harms.

Australia’s racial vilification laws may be tested further as we continue to see protests and debate the changes necessary to move forward in a more just and equitable world. While the path ahead is unclear, we do know that there are many overlaps and similarities between common law defamation and Part IIA – in terms of scope and definition and also at a more conceptual level. Consequently, defamation law will remain highly relevant to the ongoing interpretation of Australia’s racial vilification laws.

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